MOHANLAL Vs. ARUN KUMAR AND ANOTHER

JUDGEMENT

(1.) Present civil revision under section 115 of the Code of Civil Procedure, 1908 has been preferred by the petitioner/revisionist/defendant against the order dated 01-10-2015 (Annexure P/1) passed by the trial Court by which the application under Order 9, Rule 13 read with section 151 of CPC and application under Section 5 of Limitation Act have been dismissed. Petitioner has also challenged the order date 12-05-2016 (Annexure P/2) passed by the appellate Court whereby miscellaneous appeal preferred by the petitioner, challenging the order dated 01-10-2015 before the lower appellate Court, has also been dismissed. Therefore, this revision has been preferred.

(2.) Precisely stated facts of the case are that, respondents instituted a suit for possession and mesne profits which was registered as Civil Suit No. 26-A/2011. Notice was issued in the case and the present petitioner as defendant caused his appearance and filed written statement. Thereafter, issues were framed by the trial Court. Evidence was led by the plaintiffs in support of their pleadings. Thereafter, petitioner remained absent before the trial Court and therefore, trial Court proceeded ex parte and passed the judgment and decree dated 22-09-2011. It is submitted that counsel for the petitioner Shri Rajesh Sharma who used to appear in the case could not communicate with the petitioner and because of his ill health he could not appear, therefore, ex parte judgment and decree has been passed. Therefore, petitioner got a notice of execution on 04-10-2012. Thereafter, he contacted his counsel on 05-10-2012 wherein he came to know that earlier advocate Rajesh Sharma left the office and therefore, matter could not be attended. On contacting the said advocate, he informed the petitioner about the file in the office of his senior. Thereafter he contacted in the office of his senior and then one counsel inspected the record on 08-10-2012 and came to know about ex parte judgment and decree dated 22-09-2011. Thereafter, by completing the procedural formalities, on 06-11-2012, application under Order 9, Rule 13 of CPC was filed. The trial Court considered the application and the case was dismissed on merits as well as on the point of delay. Thereafter, petitioner preferred miscellaneous appeal under Order 43, Rule 1 of CPC before the appellate Court but the said appeal was also dismissed, therefore, the present civil revision under section 115 of CPC has been preferred.

(3.) According to learned senior counsel for the petitioner, main ground raised by the petitioner before the Court below in respect of non appearance on behalf of petitioner was medical ailment of petitioner because he suffered from cirrhosis of liver and therefore, could not attend the case and because of the fact that matter was civil suit wherein regular attendance of a party is not required, therefore, said non appearance was bona fide and thus, learned Court ought to have considered the said aspect and by not considering the same, learned Courts below have erred in passing of the order rejecting the application of petitioner under Order 9, Rule 13 of CPC. Delay in filing of said appeal has been explained by the petitioner in the application itself because after getting knowledge when execution notice was received by the petitioner, he contacted the office of advocate whom he engaged and he came to know that the counsel who was attending the case left the office of his senior and started practicing independently and after meeting the said counsel, petitioner came to know about file which was kept in the office of his senior and thereafter, the case was prepared and was filed, therefore, no delay has been caused after the date of knowledge. Petitioner is a poor illiterate person and therefore, did not understand the legal procedure. He referred the judgment of Hon'ble Supreme Court in the matter of Rafiq and another v. Munshilal and another AIR 1981 SC 1400 , as well as judgment of this Court in the matter of Nathua v. Badri Prasad, 2015 (II) MPWN 145 and order dated 31-03-2016 passed in M.A.No. 276/2013 as well as the order dated 28-07-2017 passed by the Division Bench of this Court in the case of Smt. Dev Kumari alias Devki Prajapati v. Vinod Prajapati in R.P.No. 360/2016 and submits that the case in hand also needs to be considered in the light of mandate as referred above.